First Service Bank v. Swarek
CourtCourt of Appeals for the Fifth Circuit
Date FiledNovember 12, 2026
Docket25-60618
StatusUnpublished
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Full Opinion
Case: 25-60618 Document: 103-1 Page: 1 Date Filed: 11/12/2026
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
November 12, 2026
No. 25-60618 Thomas B. Plunkett, III
Summary Calendar Clerk
____________
First Service Bank,
Plaintiff—Appellee,
versus
Thomas L. Swarek,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:24-CV-20
______________________________
Before Higginbotham, Smith, and Ho, Circuit Judges.
Per Curiam: *
Thomas Swarek, proceeding pro se, appeals the district court’s grant
of summary judgment in favor of First Service Bank (“FSB”) on his guaranty
of a $50 million loan, as well as its alternative denial of his motion to set aside
default and entry of default judgment. He challenges FSB’s authority to
recover the full debt, the calculation of the judgment, and the district court’s
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 25-60618
reliance on evidence submitted with FSB’s summary judgment reply. He also
contends that the default rulings rest on the same flawed merits analysis. We
AFFIRM.
I.
In 2020, FSB entered into a $50,000,000 loan agreement with El
Dorado Gas & Oil, Inc., with Swarek as a guarantor. FSB subsequently sold
a 95% participation interest in the loan to MS Facilities 2020 LLC (“MS
Facilities”), retaining a 5% interest and serving as the loan’s servicing agent.
After the borrower defaulted, FSB accelerated the debt and sought to recover
the outstanding balance from Swarek pursuant to his guaranty.
FSB filed the present suit in January 2024, seeking judgment against
Swarek for failure of his payment obligations. After Swarek did not timely
answer, the clerk entered default, which Swarek promptly moved to set aside.
FSB subsequently moved for summary judgment. Swarek opposed the
motion, arguing that FSB could recover only its 5% interest in the loan and
that MS Facilities was a necessary party. FSB responded with additional
evidence concerning its authority to enforce the entire debt. The district
court granted summary judgment for FSB, concluding that it was
contractually authorized to recover the full outstanding balance and that MS
Facilities was not a required party. In the alternative, the court also denied
Swarek’s motion to set aside default and granted FSB’s motion for default
judgment. The court entered judgment for $54,928,751.83, which became
final following dismissal of the remaining claims against another defendant.
Swarek appealed.
II.
We review a district court’s grant of summary judgment de novo,
viewing all evidence in the light most favorable to the non-moving party and
drawing all reasonable inferences in that party’s favor. Dediol v. Best
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No. 25-60618
Chevrolet, 655 F.3d 435, 439 (5th Cir. 2011). Summary judgment is proper
when “the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A genuine dispute of material fact exists “if the evidence is
such that a reasonable jury could return a verdict for the non-moving party.”
Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
III.
The district court did not err in granting summary judgment. “[S]uits
on promissory notes provide fit grist for the summary judgment mill.”
Resolution Trust Corp. v. Starkey, 41 F.3d 1018, 1023 (5th Cir. 1995) (quoting
FDIC v. Cardinal Oil Well Servicing Co., 837 F.2d 1369, 1371 (5th Cir. 1988)).
FSB produced the loan documents, Swarek’s guaranty, and sworn evidence
establishing default and the outstanding balance. Swarek does not dispute
that he was late on payments owed to FSB. He instead contends that FSB
lacked authority to recover the entire debt. Although FSB sold a 95%
participation interest to MS Facilities, the participation and servicing
agreements established that FSB retained title to the loan and authority to
enforce the entire obligation. And MS Facilities “support[ed] FSB’s decision
to pursue this litigation for the full amount to the debt.” Swarek identifies no
evidence creating a genuine dispute concerning FSB’s enforcement
authority. Nor, as explained by the district court, was MS Facilities a required
party to the action under Federal Rule of Civil Procedure 19(a).
Swarek also challenges the amount of the judgment, arguing that FSB
failed to adequately substantiate its calculation of principal, interest, and fees.
But Swarek did not raise these objections before the district court, instead
challenging FSB’s authority to recover payment in full. He has therefore
forfeited the argument on appeal. See Rollins v. Home Depot USA, 8 F.4th 393,
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397–98. In any event, FSB submitted a sworn declaration itemizing the
outstanding balance, and the loan agreement expressly authorized
capitalization of deferred interest. Swarek has identified no evidence of an
incorrect calculation to create a genuine dispute of material fact.
Finally, Swarek challenges the district court’s reliance on evidence
first submitted with FSB’s summary-judgment reply. We review such
evidentiary rulings for abuse of discretion. Huynh v. Walmart Inc., 30 F.4th
448,458 (5th Cir. 2022) (citation omitted). “[W]hen a party raises new
arguments or evidence for the first time in a reply, the district court must
either give the other party an opportunity to respond or decline to rely on the
new arguments and evidence.” Ga. Firefighters’ Pension Fund v. Anadarko
Petroleum Corp., 99 F.4th 770, 774 (5th Cir. 2024) (citation omitted). Swarek
was not denied the opportunity to respond. He neither objected to the
evidence nor sought leave to file a surreply in the fifty-two days before the
district court ruled. Nor has he demonstrated “substantial prejudice”
warranting reversal. Huynh, 30 F.4th at 458. Therefore, there is no basis to
find an abuse of discretion.
As summary judgment was proper, we need not address the district
court’s alternative default-judgment rulings.
AFFIRMED.
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